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2024 DIGILAW 932 (AP)

M. Elma Saeg v. State of Andhra Pradesh

2024-08-02

K.MANMADHA RAO

body2024
ORDER : 1. This petition is filed under Article 226 of the Constitution of India for the following relief: “to issue an order direction or writ more particularly one in the nature of Writ of Mandamus, to declare the impugned removal orders in Roc. No. 771/2019/A6, dated 28.01.2020 issued by 3rd respondent under the influence of the District Collector, West Godavari in the absence of any “Articles of Charges” in clear violation of Rule 20 of APCS (CCA) Rules, 1991, as illegal, arbitrary and discriminatory and violation of Principles of Natural Justice and set aside the same, consequently direct the respondents herein to reinstate the petitioner in the post of Language Pandit (Hindi) immediately and pass such other order or orders......” 2. The precise case of the petitioner is that she initiated appointed as Language Pandit (Hindi) in SNS Municipal High School, Narasapuram Municipality and subsequent she was transferred to NTR UP School No. 1, Tanuku Municipality, West Godavari District from 13.02.2019 to 30.01.2020. The husband of the petitioner made a complaint to the District Collector, West Godavari stating that she produced false study certificates from 4th to 9th classes at St. Xavier’s English Medium School, Tanuku. As against the false complaint the 5th respondent appointed the Deputy Educational Officer, Tadepalligudem to conduct enquiry. Without framing any Article of Charges issued Show-Cause notice to the petitioner, without conducting any preliminary enquiry and investigation and submitted enquiry report. Basing on the preliminary enquiry report of the District Collector, West Godavari, Eluru and the District Educational Officer/ 5th respondent simply removed the petitioner from service and no opportunity was given to submit her explanation, in the absence of any Charge Memo, no show cause notice was issued under Rule 21 of APCS (CCA) Rules-1991 duly informing the nature of punishment etc. which is highly illegal and arbitrary. As against the illegal removal orders, dated 28.01.2020 the petitioner preferred statutory appeal under Rule 33 of APCS (CCA) Rules, 1991 before the 2nd respondent on 07.03.2020 and the same is pending without any further orders. Therefore, this Writ Petition came to be filed. 3. Heard MR. Ramalingeswara Rao Kocherlakota, learned counsel for the petitioner and learned Assistant Government Pleader, Services-III and learned Assistant Government Pleader, Municipal Administration and Urban Development for the respondents. 4. Therefore, this Writ Petition came to be filed. 3. Heard MR. Ramalingeswara Rao Kocherlakota, learned counsel for the petitioner and learned Assistant Government Pleader, Services-III and learned Assistant Government Pleader, Municipal Administration and Urban Development for the respondents. 4. During hearing learned counsel for the petitioner reiterated the contents urged in the writ affidavit and mainly contended that basing on the false complaint made by the husband of the petitioner, the 3rd respondent without issuing any Articles of Charges, simply removed the petitioner from service and issued impugned proceedings is highly illegal and arbitrary. Even though the respondents did not followed the procedure contemplated under Rule 20 of APCS (CCA) Rules, 1991 before issuing a major punishment against the petitioner. Further as against the removal orders, the petitioner have preferred a statutory appeal before the 2nd respondent on 07.03.2020, which is pending since then. Hence, requested to allow the writ petition. 5. Per contra, the respondents 1, 4 and 5 have filed counter-affidavit denying all material averments made in the writ affidavit and mainly contended that the petitioner has appeared for Certificates verification to the post of Language Pandit (Hindi). At the time of verification, it was noticed that the Study Certificate and Conduct Certificates for Class 4th to 8th issued by St. Xavier’s Public School, Tanuku has not having any reorganization. Hence directed to submit the residence certificate for the periods from 1893-84 to 1987. The petitioner has made a representation dated 22.02.2016 to the 4th respondent stated about her studies in different places and she given an undertaking if the information furnished by her is proved as false, she would bind over to take action initiated by the department and requested to consider her as local candidate. Basing on the allegations against the petitioner by her husband, the Deputy Educational Officer has conducted an enquiry and submitted a report. Wherein it was mentioned that as per Nativity and Date of Birth Certificate the petitioner is native of Pervali and in the complaint lodged by her husband she has studied in Bokaro, Bihar, since her childhood, but not produced any documentary evidence such as Record Sheet, Study Certificate etc. in support of her claim in the absence of any evidence, it cannot be concluded that she has neither studied nor stayed in West Godavari, during the period from 1983-84 to 1987-88. in support of her claim in the absence of any evidence, it cannot be concluded that she has neither studied nor stayed in West Godavari, during the period from 1983-84 to 1987-88. In view of the same, the petitioner was posted at Narasapuram Municipality for necessary action, she has not been submitted any documentary evidence to the office. Meanwhile, one S. Yerusha Rani, BC-C(W) candidate has made a representation to the District Collector on 13.06.2016 stating that Language Pandit (Telugu) under BC-C(G) local post was filled with Smt. M. Elma Saeg, Non Local candidate with rank 47 instead of her selection and requested to do justice. The District Collector has issued instructions to the 4th respondent to take appropriate action. 6. The 5th respondent issued Show-Cause notice dated 14.07.2016 to the petitioner to submit documentary evidences to prove her local status. Meantime, the petitioner filed O.A. No. 2968 of 2016 challenging the Show Cause notice dated 14.07.2016 and the learned Tribunal directed the 5th respondent to verify and furnish the VII Class examination certificate (Marks Memo etc.) of the 5th respondent. The action of the 3rd respondent vide proceedings dated 28.01.2020 on removal of the petitioner from her services is made basing on the complaint of her Ex-Husband and basing on the orders passed by the learned Tribunal in O.A. No. 2225 of 2017, dated 21.03.2018 as well as the detailed enquiry report furnished by the Special Deputy Collector (LA), PIPRMC, Kovvuru, West Godavari and as per the instructions of the District Collector and District Selection Committee as it was proved that the local certificates and educational qualification certificates produced by the petitioner are fraudulent and not genuine and the action on cancellation of appointment orders of the petitioner was done in the prescribed procedure, since the petitioner has failed to prove her genuineness, which are produced at the time of her appointment. Therefore, requested to dismiss the writ petition. 7. The respondent 2 and 3 filed counter-affidavit and mainly contended that the 5th respondent has submitted a report to the with regard to certain allegations against the petitioner and informed to remove from service and issue posting orders to Smt. S. Yerusha Rani in the place of petitioner under instructions of Chairman, DSC and the District Collector, West Godavari vide letter dated 28.11.2019. After receipt of the enquiry report, the Chairman DSC is the competent authority to finalize the local status of the petitioner and evidence of the material the petitioner has been removed from the service and Smt. Y. Yerusha Rani has been appointed as Language Pandit (Hindi) vide proceedings dated 28.01.2020. Therefore, requested to dismiss the writ petition. 8. The 6th respondent filed counter-affidavit denying all material averments made in the writ affidavit and mainly contended that the petitioner has failed to produce required certificates, but she furnished letter of explanation dated 01.02.2018 stating that she studied 4th to 8th Classes during the academic years from 1983-84 to 1987-88 at St. Xvier Public School, Tanuku, but the said School did not give any Marks Memo or Certificate to the petitioner and as such except the Study Certificate issued by the Principal of St. Xavier Public School, Tanuku, the petitioner does not possess any other Certificate. Hence, except furnishing the said explanation, the petitioner failed to produce the required Marks Memo of 7th Class Examination. While the petitioner was in service as Language Pandit (Hindi) at NTR UP School No. 1, Tanuku Municipality, removed from service by the 3rd respondent vide proceedings dated 28.01.2020 following the procedure and posted Smt. S. Yerusha Rani as Language Pandit (Hindi) in the place of the petitioner. Hence, the writ petition is devoid of any merit and requested to dismiss the same. 9. Perused the record. 10. The 3rd respondent passed an order dated 28.01.2020 holding that basing on the instructions of the District Collector has decided that the petitioner, who had worked as Language Pandit (Hindi) SNS Municipal High School, Narsapur Municipality and presently working as Language Pandit (Hindi) NTR UP School, Tanuku Municipality is removed from service as her appointment under condition of if the certificates furnished by the candidate in respect of qualifications, local area caste, PHC etc. are found to non-genuine, bogus, the selection will be cancelled without any further notice, basing on the report submitted by the 5th respondent. Assailing the same, the petitioner has preferred statutory appeal under Rule 33 of APCS (CCA) Rules, 1991 before the 2nd respondent on 07.03.2020 and the same is pending. 11. are found to non-genuine, bogus, the selection will be cancelled without any further notice, basing on the report submitted by the 5th respondent. Assailing the same, the petitioner has preferred statutory appeal under Rule 33 of APCS (CCA) Rules, 1991 before the 2nd respondent on 07.03.2020 and the same is pending. 11. During hearing learned counsel for the petitioner placed on record the decision of the Hon’ble Apex Court in Nagaraj Shivarao Karjagi v. Syndicate Bank Head Office, Manipal and Another, AIR 1991 SC 1507 wherein it was held as follows: “19......The punishment to be imposed whether minor or major depends upon the nature of every case and the gravity of the misconduct proved. The authorities have to exercise their judicial discretion having regard to the facts and circumstances of each case. They cannot act under the dictation of the Central Vigilance Commission or of the Central Commission or of the Central Government. No third party like the Central Vigilance Commission or the Central Government could dictate the disciplinary authority or the appellate authority as to how they should exercise their power and what punishment they should impose on the delinquent officer. (See: De Smith's Judicial Review of Administration Act, Fourth Edition, p.309). The impugned directive of the Ministry of Finance is, therefore, wholly without jurisdiction and plainly contrary to the statutory Regulations governing disciplinary matters.” 12. He further relied on a decision of the Hon’ble Apex Court in M.P. State Agro Industries Development Corporation Limited and Another v. Jahan Khan, 2008 (1) SLR 5 [Civil Appeal Nos. 4041-4042 of 2007, dated 05.09.2007] wherein it was held as follows: “10. .....In an appropriate case, in spite of the availability of an alternative remedy, a writ court may still exercise its discretionary jurisdiction of judicial review, in at least three contingencies, namely (i) where the writ petition seek enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice or (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged.” 13. Therefore, learned counsel for the petitioner vehemently argued that the respondents without conducting proper enquiry and without giving ample opportunity of hearing of the petitioner, unilaterally removed the petitioner from the service is as illegal and arbitrary in the light of decisions cited supra. 14. Therefore, learned counsel for the petitioner vehemently argued that the respondents without conducting proper enquiry and without giving ample opportunity of hearing of the petitioner, unilaterally removed the petitioner from the service is as illegal and arbitrary in the light of decisions cited supra. 14. Upon perusal of the entire material available on record would show that it reveals that basing on the complaint an enquiry was initiated against the petitioner with regard to false certificates submitted by her during the course of her employment. The Inquiring Authority also conducted inquiry with a direction to produce relevant records to them to verify the genuineness of the same, but the respondents submitted that inspite of given opportunity, the petitioner did not produce the same. Hence, basing on the enquiry report, the respondents removed the petitioner from service and posted Smt. S. Yerusha Rani as Language Pandit (Hindi) in the place of the petitioner as contended by the respondents. 15. However, the petitioner has preferred an appeal before the 2nd respondent against the order passed by the 3rd respondent, but same is pending finality. The respondents also not stated in the counter-affidavit, whether such appeal is pending or not before the 2nd respondent. Therefore, this Court presumed that the Appeal is pending before the 2nd respondent as admitted by the petitioner in the writ affidavit. Instead of proceeding with the Appeal again the petitioner has approached this Court by filing this Writ Petition is not maintainable, which is nothing but parallel proceedings. 16. Under these circumstances, the petitioner cannot invoke the procedure under Article 226 of the Constitution to issue writ of mandamus in her favour. Therefore, it is suffice it to issue a direction to the 2nd respondent to dispose of the statutory appeal preferred by the petitioner against the order passed by the 3rd respondent within three (03) months from the date of receipt of a copy of this order. Meanwhile, the respondents are directed not to take further action against the petitioner with reference to the impugned order of removal dated 28.01.2020. 17. With the above direction, this Writ Petition is disposed of. There shall be no order as to costs. 18. The miscellaneous applications pending, if any, shall also stand closed.